BY SAM ALFAN.
A company have moved to court seeking to be paid over Sh5 billion by the government, and the University of Nairobi for loss of a prime property in Nairobi’s Upper Hill area.
Wathanangu Holding limited through lawyer Kibe Mungai want the government to compensate it Sh5,144,142,225 over the property near the Kenya National Hospital (KNH) and Kenya Accountants and Secretaries National Examinations Board (KASNEB).
The company want the court to quash the decision or advice by the then Minister for Lands contained in the letter dated 7th March, 2006 arguing that it was made in contravention of its rights and freedoms.
The company wants the Environment and Land court Judge Anne Korros to issue mandatory injunction compelling the Attorney General, UoN, Kenya Medical Training Center(KMTC), to vacate the parcel of land.
The firm is also seeking the removal of all bill boards and structures erected on the parcel.
“A declaration be issued to declare that the forcible entry, seizure, occupation and repossession of L. R. No. 209/12109 (I.R. No. 65345) amount to violation of the Plaintiff’s rights to protection of property under Article 40 of the Constitution,” the company said in court documents.
According to the company, it is the registered proprietor of L. R. No. 209/12109 (Grant No. I. R. 65345) measuring 0.4034 Hectares by dint of the first original title dated 22nd February, 1995 issued under the Registration of Titles Act.
The company stated that through a Sale Agreement dated 8th February, 1995, it purchased the said property for Sh4.5 from Silver Clouds Investment Ltd the then allottee.
The firm said since 1999 government entities including KMTC have been interfering with its rights of ownership and occupation of the subject property, using various unlawful schemes and devices.
Environment and Land court heard In August 1999, Wathanangu Holding ltd instituted judicial review proceedings seeking the removal of a caveat registered by the Registrar of Titles on 20th April 1999.
“Pursuant to the said judicial review proceedings on 19th October 1999 the High Court issued an order compelling the Registrar of Titles to remove the caveat he had placed on the subject land -LR No. 209/12109. The said caveat was finally removed on 5th January 2001,” court heard.
Subsequently Chief Land Registrar with full knowledge of the ongoing allotment of land in the vicinity of the subject land, failed to take administrative action to inform UoN and KMTC that the company was the legitimate owner of subject land.
This was four years before the UoN and KMTC were allotted a parcel adjacent to the disputed parcel.
“Chief Land Registrar to date by his actions has abetted the trespassing of the subject land by UoN and KMTC. As a result of Registrar’s commission and omission the company was denied the opportunity to proceed with development of the property in 1999 despite development plans having been prepared and delivery to site of building materials commenced,” Wathanangu Holding ltd lawyer Kibe told the court.
Company submitted that in November 2003, KMTC erected a fence around a plot adjacent the Wathanangu’s land in the course of which it blocked the public access to its parcel.
“Despite several requests by the company to KMTC to allow access, KMTC agents used violent means to deny Wathanangu Holding ltd access to LR No 209/12109 from November 2003 to 2013. KMTC had knowledge that it had no legitimate claim of the property LR No.209/12109,” court heard.
The court heard that during the period UoN erected a bill board on Wathanangu’s land claiming ownership over it.
UoN, the firm said, therefore had knowledge and tacitly approved the actions of KMTC.
“By this circumstantial evidence KMTC acted on behalf of UoN with UoN’s approval. As a result of the said actions of UoN and KMTC, Wathanangu was denied the opportunity to proceed with development of the property despite development plans having been prepared and delivery to site of building materials commenced,” court heard.
The court further heard that subsequent to its allotment of surveyed land had knowledge that the parcel of land allotted to it excluded the property LR No 209/12109.
“Despite the aforementioned knowledge, UoN mischievously requested for Government intervention on property LK No 209/12109 by a letter dated 7th March 2006.
Pursuant to which the then Acting Minister of lands Prof. Kivutha Kibwana stated that the University of Nairobi was the rightful owner of the land.
The minister then advised and directed the university to repossess it and put it to the use originally intended.
Wathanangu argued that the Minister’s advice and directive were and remain unlawful.
“The Minister’s actions on behalf of the 5th defendant abetted the trespassing of the subject land by 2nd and 3rd defendants. As a result of the said action of the 5th Defendant’s the plaintiff was denied the opportunity to proceed with development of the property despite development plans having been prepared and delivery of building materials commenced,” court heard.
